MOYO J:
This is an application for a
variation of a divorce order that was granted in 2008 on the 12th
day of June in HC 2909/07. The clause that Applicant seeks to vary is
worded in the following terms:-
The Plaintiff to solely retain the
ownership and administration of TipTop Smiles Infant School, while Defendant is
awarded ZW$1000 000 000,00 which is the monetary equivalent of a 50% share of
the entire commercial venture.
I granted the order sought by
applicant ex tempore in the following terms;
IT IS ORDERED THAT:-
(1)
Clause 6 of the divorce order granted by this Honourable court under case
number HC 2909/07 on the 12th of June 2008 be and is hereby varied
to read as follows:
“The
parties' business venture TIPTOP Smiles Infant School be evaluated by a
reputable Estate Agent after which the Plaintiff will retain sole ownership of
the business upon paying to the Defendant a 50% share of the net value of the
entire business' within 3 months of the evaluation' failing which the business
be sold to best advantage with the parties sharing the net proceeds equally.”
(2)
The Respondent pays costs at an attorney and client scale.
It is applicant's case that Clause 6 of the divorce order was never put into
effect. Respondent did not honour that order, he kept the business but
did not pay the Applicant her dues in terms of the divorce order.
What is apparent from the order is that it did not have a Clause to protect
Applicant's interests in the event that Respondent did not honour
same. That is the predicament that was faced by the Applicant
resulting in this application which is an application for variation of the
original divorce order in terms of rule 449 so that there is a time limit with
in which Respondent should pay applicant her dues. The variation also
seeks to add that in the event Respondent does not pay applicant what is due to
her in terms of the divorce order, then the business venture be sold to best
advantage and the net proceeds therefrom shared equally between the parties.
Respondent opposed the application, he states that Applicant is coming to court
with unclean hands in that she did not “claim” her share since 2008 to
date. One does not understand how Applicant could claim what she was
already entitled to in terms of a court order. Applicant states that she
tried to liase with the Respondent for him to pay her what was due in terms of
the court order to no avail. It is clear that Respondent took advantage
of the fact that the divorce order did not provide Applicant with any
enforcement mechanism and Applicant remained at his mercy all these years.
Respondent contends that Applicant is now claiming a share of the entire
commercial venture yet he has improved it since 2008. One wonders why
Respondent, who was the Plaintiff in the divorce matter, did not pay out
Applicant's dues in terms of the court order in 2008 if he believed she was
entitled to the value of the business as at that time. In fact Respondent
is being contemptuous of this Honourable Court. The court ordered him to
pay ZWD1000 000 000-00 being 50% of the entire commercial venture to Applicant
on the 12th of June 2008, he sits back does nothing about it, he
invites his relatives to come and invest in a business where 50% has been
awarded to Applicant by an order of the court. He does not honour a court
order and in fact claims to have gone on to improve the business. He in
fact claims that after divorce they reconciled with Applicant and lived
together, meaning Applicant was still part of the business as a family member
and a wife even after divorce. He clearly took advantage of the fact that
the court order left the Applicant with no enforcement mechanism. Even if
he says they reconciled after divorce, he does not say that Applicant then
waived her rights in terms of the divorce order, neither did the parties
approach this court for a rescission of the divorce order by consent. The
court order therefore still stands and must be honoured.
Respondent should not have opposed this application as his opposition has no
basis whatsoever. He further seeks to state that part of the business
venture he had inherited from his parents. This is irrelevant as the
order that he himself sought, (the decree of divorce) awarded Applicant a 50%
share in the business, he cannot seek now to give the court an impression that
he has problems with that order. In any event, even if he did, he
should not have waited for this application to correct what he perceived as an
injustice, he should have applied for the rescission of that judgment a long
time ago. The judgment itself having been granted obviously to
Plaintiff's knowledge, more than 5 years ago, Plaintiff can not try to chicken
out of it now. The court should frown at litigants who do not honour
court orders. This is one case that indeed calls for costs at an attorney
and client scale as Mr Dube for the Applicant rightfully contended.
In order for a litigant to successfully claim costs as between attorney and
client, which is punitive, he must show that the other party deserves to be
punished for its behaviour. In the case of Michael Mahembe v Clever
Matombo HB 13/03 CHEDA J(as he then was) found the circumstances in which
it would be justified to award costs at an attorney and client scale as the
following:-
(1)
dishonest conduct either in the transaction giving rise to the proceedings or
in the proceedings themselves.
(2)
malicious conduct
(3)
vexatious proceedings
(4)
reckless proceedings
(5)
frivolous proceedings
In the present case Respondent was ordered to pay Applicant her 50% share in
the business venture on 12th June 2008, he was the Plaintiff in that
case and was therefore aware of the court order. He neglected to bring to
fruition the contents of that order, apparently because Applicant had no
enforcement mechanism in the event that Respondent failed to honour the court
order. Applicant, despite his contemptuous conduct of having failed to honour
the order of this court for a period in excess of 5 years, he then decides to
oppose the application for variation on spurious grounds. Respondent
should clearly bear applicant's costs at an attorney and client scale.
Mcijo Dube and partners,
applicant's legal practitioners
Dube-Banda, Nzarayapenga and partners, respondent's legal practitioners
